The Supreme Court of Pakistan has clarified that the government has the constitutional authority to promulgate ordinances. The matter about the government’s jurisdiction to issues ordinance was under discussion for the past several days.
The observation came when at the outset of the hearing in the presidential reference on the open ballot for the Senate elections, senior counsel Kamran Murtaza, representing the Jamiat Ulema-i-Islam-Fazl (JUI-F), invited the Supreme Court’s attention towards the promulgation of the ordinance.
Justice Ijaz-ul-Ahsan further observed that the ordinance was conditional and would “die” once the Supreme Court gave an answer to the question being asked through the reference. He said the petitioner could approach the Islamabad High Court (IHC) if they had any grievance.
The JUI-F’s counsel argued that the court should take notice since the promulgation of the ordinance in this manner and at this time undermined the judicial proceeding on a pending matter as well as the sovereignty of parliament and the supremacy of the Constitution. He urged the SC to order that the ordinance was issued with mala fide intent and declare that by promulgating the ordinance, the government had attempted to undermine the judicial proceedings.
Attorney General for Pakistan (AGP) Khalid Jawed Khan brushed aside the impression that any pre-emptive step had been taken and argued that the ordinance was promulgated in the context since the Election Commission of Pakistan (ECP) was going to issue the Senate elections schedule on Feb 11 when the apex court was hearing the reference, explaining that the entire exercise would become academic if the court would give its opinion after Feb 12.
The chief justice also observed that had it been pre-emptive, the court would have struck it down.
Why government introduced the Ordinance?
According to sources, the decision for introducing the presidential ordinance was taken after the opposition staged a demonstration in the National Assembly on Thursday and blocked the passage of the Constitution Amendment Bill, tabled by the government for holding Senate polls through the open ballot.
Earlier, Chairman Senate Sadiq Sanjrani has backed holding Senate elections via open ballot in his response to a reference pertaining to the matter filed by the government in the Supreme Court.
Khyber Pakhtunkhwa, Punjab, and Balochistan governments have also backed the federal government’s opinion of holding open-ballot polls, while Sindh has rejected the idea.
A five-judge larger bench of the apex court, headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Yahya Afridi, hearing the reference.
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The apex court had issued notices to Advocate Generals, the Election Commission of Pakistan, Chairman Senate, Speaker National Assembly and the Speakers of provincial assemblies over the issue.
PTI to emerge as the winning party?
Ahmed Bilal Mehboob, President of the Pakistan Institute of Legislative Development and Transparency, opines that “if the Senate election takes place in March 2021 as scheduled, the PTI is likely to emerge as the largest party in the house, displacing the PML-N from that position”.
It is, however, important to note that the Pakistan Democratic Movement (PDM) has announced to resign from the assemblies. PPP, led by Bilawal Bhutto Zardari, is one of the parties rallying against the government. Syed Murad Shah, Chief Minister Sindh, may advise the dissolution of the assembly shortly ahead of the Senate election in March 2021 which may keep an entire province out of the election.
Mehboob writes that “in case this happens, it will be the first time that a province skips the Senate election cycle”. “Since there is no clear and explicit provision in the Constitution and the Elections Act regarding such a situation, the matter may end up in a court of law for resolution and interpretation of the Constitution,” he continued.
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“This may become necessary also because fresh election of the chair and deputy chair of the Senate has to take place immediately after the March 2021 election and the absence of half the representation of a province may significantly impact the outcome of these elections,” he concluded.